Unofficial Opinion 97-24

Covered multifamily dwellings are not subject to the 2% cap on fully accessible or adaptable rental apartment complexes of 20 units or more which is found in O.C.G.A. § 30-3-2(8).

This letter will respond to your request for an opinion from the Attorney General regarding O.C.G.A. † 30-3-1 et seq. The issue which you have presented is:

Whether the 2% cap on fully accessible or adaptable rental apartment complexes of 20 units or more which is found in O.C.G.A. † 30-3-2(8) also applies to covered multifamily dwellings.

Chapter 3 of Title 30 of the Official Code of Georgia Annotated addresses access to and use of public facilities by persons with disabilities. The stated purpose of the provisions of the Chapter are "to further the policy of the State of Georgia to encourage and enable persons with disabilities or elderly persons to participate fully in the social and economic life of Georgia and to encourage and promote their education and rehabilitation." O.C.G.A. † 30-3-1.

The Chapter requires certain accessibility or adaptability standards for specified buildings. Official Code of Georgia Annotated † 30-3-3 establishes the applicable standards and specifications for government buildings, public buildings and facilities. Official Code of Georgia Annotated † 30-3-4 establishes the applicable standards and specifications for covered multifamily dwellings. A covered multifamily dwelling is defined as a building: "which had first occupancy after March 31, 1993, and consists of four or more units and has an

elevator or the ground floor units of a building which consists of four or more units and does not have an elevator." O.C.G.A. † 30-3-2(5).

Public buildings are defined as:

[A]ll buildings, structures, streets, sidewalks, walkways, and access thereto, which are used by the public or in which persons with disabilities or elderly persons may be employed, that are constructed or renovated by the use of private funds, including rental apartment complexes of 20 units or more and temporary lodging facilities of 20 units or more, but excluding covered multifamily dwellings; provided, however, that this chapter shall require fully accessible or adaptable units in only 2 percent of the total rental apartments, or a minimum of one, whichever is greater, and this chapter shall apply to only 5 percent of the total temporary lodging units.

O.C.G.A. † 30-3-2(8) (emphasis added).

You have indicated that there is some confusion regarding whether the phrase "this chapter shall require fully accessible or adaptable units in only 2 percent of the total rental apartments" which appears in O.C.G.A. † 30-3-2(8) is applicable to covered multifamily dwellings. It is my opinion that the 2% accessibility or adaptability cap does not apply to covered multifamily dwellings.

The cardinal rule of statutory construction or interpretation is to seek the intent of the legislature. O.C.G.A. † 1-3-1(a); City of Roswell v. City of Atlanta, 261 Ga. 657, 657 (1991). The legislative history of O.C.G.A. †† 30-3-2 and 30-3-4 does shed light on the Georgia legislature's intent. In 1992, Chapter 3 of Title 30 of the Official Code of Georgia Annotated was amended in pertinent part as follows:

1) the term "covered multifamily dwelling" and its definition were added for the first time to the statute; 2) the phrase "but excluding covered multifamily dwellings" was added to the definition of "public buildings;" and 3) the statute was amended by adding a new section, 1992 Ga. Laws 2461, 2462, sec. 3, which is now codified at O.C.G.A. † 30-3-4 and which sets forth the accessibility requirements for covered multifamily dwellings.

Prior to these amendments, the definition of public buildings provided an exemption for only single-family residences or to duplexes or any complex containing fewer than 20 units, or to residential condominiums. See 1987 Ga. Laws 1425, 1427, sec. 1. After the 1992 amendments, the definition of public buildings expressly excluded multifamily dwellings and 1992 Ga. Laws 2461, 2462, sec. 3, now codified at O.C.G.A. † 30-3-4, was adopted in order to provide the guidelines that are applicable to covered multifamily dwellings.

The 1992 amendments to Chapter 3 of Title 30 of the Official Code of Georgia Annotated deliberately created a new, separate category of housing called "covered multifamily dwellings," provided a new code section which regulates the accessibility or adaptability guidelines for covered multifamily dwellings, and expressly excluded covered multifamily dwellings from the definition of public buildings. From these amendments, one can deduce that the legislature was creating a distinct category of housing with its own accessibility or adaptability requirements.

Another rule of statutory construction requires the interpreter to follow the literal language of the statute unless the literal interpretation will create absurdity, contradiction or such a level of inconvenience so as to insure that the legislature meant something else. O.C.G.A. † 1-3-1(b); Telecom*USA v. Collins, 260 Ga. 362, 363 (1990). The definition of "public buildings" found in O.C.G.A. † 30-3-2(8) clearly states that covered multifamily dwellings are excluded from the definition of "public buildings." This interpretation does not create absurdity given the fact that O.C.G.A. † 30-3-3.1, amended 1995, and now codified at O.C.G.A. † 30-3-4, was created to establish the applicable guidelines for covered multifamily dwellings. In short, excluding covered multifamily dwellings from the definition of public buildings does not leave multifamily dwellings unregulated.

Moreover, in the absence of a contrary legislative intent, the specific statute will prevail over the general statute, where reading the two together creates an ambiguity or conflict. Stovall v. State, 216 Ga. App. 138, 142 (1995). Even if one assumes that reading O.C.G.A. †† 30-3-2(8) and 30-3-4 together creates an ambiguity as to whether or not only 2% of covered multifamily dwellings are required to be fully accessible or adaptable, it is clear that O.C.G.A. † 30-3-4 specifically addresses covered multifamily dwellings to the exclusion of all other topics and that O.C.G.A. † 30-3-2(8) defines public buildings and other subject matter generally unrelated to covered multifamily dwellings. Therefore, O.C.G.A. † 30-3-4 would prevail over O.C.G.A. † 30-3-2.

This interpretation does not engender any public policy concerns. Official Code of Georgia Annotated † 30-3-2(8)

requires full accessibility or adaptability in only 2% of total rental apartment units. In contrast, O.C.G.A. † 30-3-4 requires adaptable designs for the access route into and through the dwelling, for light switches, electrical outlets, environmental controls, bathroom reinforcements and kitchen features. Clearly, the covered multifamily dwelling adaptability requirements will result in a significantly larger number of adaptable units available to renters.

In conclusion, it is my opinion that the 2% accessibility or adaptability cap which applies to rental apartment complexes of 20 units or more found in O.C.G.A. † 30-3-2(8) does not apply to covered multifamily dwellings.

Prepared by:

DEBRA A. GOLYMBIESKI
Assistant Attorney General

The Code, therefore, does not require that 2% of the units be fully accessible; it requires that 2% of the units be fully accessible or adaptable. Adaptable refers to features provided for but not actually installed which make it possible for features required by the ADAAG (Americans with Disabilities Accessibility Guidelines) to be added to the unit or building without major structural changes. Any item which must be installed or removed for accessibility must be installed or removed within 30 days after the application of a disabled person is approved by the owner. O.C.G.A. † 30-3-2(2)(A), (B).